News faces uphill battle to stop Mail pinching its work

News Corp is accusing the Mail Online, the Australian branch of British tabloid the Daily Mail, of pinching its stories, and has served the website’s parent company with a legal letter listing 10 instances where it accuses the rival tabloid of doing so.

In Monday’s Australian, several of these stories were referred to, and show that News Corp’s concerns seem to revolve around quotes lifted from its tabloids, and story ideas it claims are being copied. But according to several media law experts Crikey spoke to this morning, it can be hard to claim such things are covered by copyright.

There are few cases involving claims of stolen stories in Australian media law. Those cases that do exist mainly refer to television broadcasts, and as a result, an industry standard has developed around fair usage of material first shown on rival networks. The media law experts Crikey called could think of few similar cases referring to print. In 2009, Fairfax accused Business Spectator of plagiarism for publishing summaries of its articles. Business Spectator, now owned by News Corp, still publishes summaries of articles in its news section, supplemented by AAP copy, and new entrants like Business Insider have adopted the practice, now seen as par-for-the-course in online news.

There’s a fair dealing clause in copyright law for the reporting of news, explains media law expert Mark Pearson. And so, any copying of content would be judged according to what is a “fair” proportion of something to use. But it’s not clear even this would apply in this case. “What’s protected is the form of expression, not the facts of a story,” he says. “So, a rewrite of a story would not be protected by copyright”. This means that as long as the Mail is rewording stories inspired by those first published in News Corp’s tabloids, it won’t be breaching the copyright.

It’s trickier with the issue of quotes. News Corp accuses the Mail of lifting quotes first given to its reporters. But it’s not clear News Corp has the copyright on the quotes in the first place, several media law experts remarked. “The Mail would presume that any rights to the quote would lie with the speaker,” says the University of Melbourne law professor Andrew Kenyon. Pearson agrees. “Unless there’s a contractual arrangement for the comments, using chequebook journalism say, I really can’t see how a particular news organisation could own the words of someone else they are quoting.”

Media lawyer Jeremy Storer, speaking generally on who owns the copyright to quotes, says at the absolute best, copyright would be held jointly between the reporter and the interviewee. “I guess in some cases, a journalist could establish they’ve put in sufficient work in organising and arranging a long-form piece that involves a long interview. In such a case, the court could determine there would be some form of joint copyright ownership.”

Kenyon says he can understand why the journalist who did the work of securing the interview would be unhappy with it being used elsewhere. “But that doesn’t automatically mean they have a copyright claim. Of course, copyright is always arguable. And if word-for-word material is taken, it can be a breach of copyright. But it’s usually not like that.”

When it comes to such claims, Pearson says whoever is sinless should cast the first stone. “Ask any major media organisation to look at the extent to which they’ve breached other people’s copyright by using photos from social media in their reporting,” he says.

Absolutely correct Klewso. Just ask Fairfax journalists in Melbourne about the number of times their exclusive stories have been stolen by Herald Scum flunkies scanning the first edition of The Age as it comes off the press, and then quickly getting some re-written copy into their own rag without attribution.